IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.10.2009 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.No.32865 of 2006 (O.A.No.1535 of 1998) 1.P.Ramakrishnan (Died) 2.R.Kalyani ...Petitioner (P2 substituted as legal representative of deceased as per order dated 14.08.2009 by KCJ in M.P.No.1/2009 in W.P.No.32865/2006) Vs 1.The State of Tamilnadu rep. By its Secretary to Government, Municipal Administration and Water Supply (M.E.IV)(1) Dept., Fort ST.George, Chennai -9. 2.The Director of Municipal Administration, Chepauk, Chennai 600 005. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records relating to the order passed by the second respondent Director of Municipal Administration Chepauk, Chennai - 5 in proceedings Roc.No.14264/92/OP3 dated 13.06.1997 and the consequential order passed by the first respondent the Secretary to Government Municipal Administration and water supply Department in proceedings G.O.(D)No.529 Municipal Administration and Water Supply (M.E.IV)(1) Department dated 21.10.1997 confirming the order passed by the second respondent and quash the same and further direct the respondents to reinstate the applicant in service as Revenue Assistant in the Pudukottai Municipality, Pudukottai, Pudukottai District and to pay all monetary as well as other service benefits. For Petitioner : Mr.A.Thirumurthy For Respondents : Mr.R.Neelakantan,G.A. O R D E R
The petitioner was working as a Revenue Assistant in the Pudukottai Municipality. He filed O.A.No.1535 of 1998 before the Tamilnadu Administrative Tribunal, seeking to challenge the order of the second respondent dated 13.06.1997 and confirmed by the order of the first respondent in G.O.(D)No.529 Municipal Administration and Water Supply (M.E.IV)(1) Department dated 21.10.1997 and for a consequential direction to reinstate him in service.
2. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.32865 of 2006.
3. During the pendency of the Original Application, the petitioner passed away on 11.09.2004. An application was filed in M.P.No.1 of 2009 by the wife of the deceased petitioner to come on record to prosecute the writ petition, which was ordered by this Court on 14.08.2009.
4. The petitioner was given a charge memo under Rule 8(2) of the Tamilnadu Muncipal Services (D & A) Rules, 1970 by the order of the second respondent dated 06.11.1995. In the said order, the petitioner was charge sheeted on the ground that on 05.02.1992, he demanded a sum of Rs.500/- from one K.Shanmugam of Pudukottai as illegal gratification for minimising the house tax to be fixed. Subsequently, on 17.02.1992, he reduced the amount to Rs.300/- and when he was accepting the said amount, he was trapped by the Police belonging to Vigilance and Anti Corruption Department. Consequent upon the same, he was placed under suspension.
5. The petitioner filed O.A.No.443 of 1993 before the Tribunal, challenging the order of suspension. The Tribunal by a final order dated 25.08.1993 disposed of the Original Application. The Tribunal though held that there was some truth in the complaint made against the petitioner and prima facie the bribe amount was paid to him, but on the ground that in view of the prolonged suspension as there was no review, the Original Application was allowed and the petitioner was directed to be restored to service.
6. Pursuant to the direction issued by the Tribunal, the petitioner was restored as Revenue Assistant with effect from 20.09.1993. Subsequently, the Government decided to hold a departmental enquiry against the petitioner on the basis of the report sent by the Director of Vigilance and Anti Corruption. Hence, G.O.Ms.No.492 MA & WS Department dated 06.09.1995 was issued directing the second respondent to conduct an enquiry after following the procedure prescribed under the Rules.
7. Accordingly, the second respondent by his proceedings dated 06.11.1995 issued a charge memo against the petitioner and the original files were also entrusted to the department for proceeding with the enquiry. The petitioner gave his explanation dated 22.01.1996 and sought for a personal hearing. Subsequently, by an order dated 06.03.1996, the Regional Director of Municipal Administration, Thanjavur was directed to hold an enquiry against the petitioner. Thereafter, the enquiry was conducted on 10.04.1996, 24.4.1996 and finally on 31.12.1996. In the enquiry, nine witnesses were examined and petitioner had cross examined those witnesses. The report of the Enquiry Officer dated 19.04.1997 was forwarded to the second respondent. The second respondent gave an opportunity to the petitioner to make further explanation. Accordingly, the petitioner made further explanation on the enquiry by his letter dated 20.05.1997. It is upon the receipt of the petitioner’s further explanation, the second respondent by an order dated 13.06.1997 held the petitioner guilty of the charges and therefore, he dismissed him from service by the said order.
8. As against the said penalty, the petitioner preferred an appeal to the first respondent State, which was rejected by the order of the Government in G.O.(D)No.529 Municipal Administration and Water Supply (M.E.IV)(1) Department dated 21.10.1997.
9. The contentions raised by the petitioner was that he was not allowed to cross examine two witnesses namely, the Vigilance Inspector R.Govindaraj and the Revenue Officer Mr.Chellam, Pudukottai Municipality by the Enquiry Officer and therefore, he could not cross examine the two witnesses. However, in the Minutes of the Enquiry Officer recorded on 31.12.1996 in respect of Chellam P.W.7, the petitioner had cross examined and the cross examination was also recorded. He has also stated that there was no further questions and signed below the said statement. There was also further endorsement that the deposition was read over and the petitioner has accepted the correctness of the recording. Similarly in respect of R.Govindaraj, the petitioner had cross examined him and also stated that no further questions and his signature is also found under the said endorsement. The Enquiry Officer again recorded that the evidence was read over and he accepted the correctness of the recording. Therefore, the contention raised in Paragraph 6.k. must fail.
10. In Paragraph 6.J, the petitioner had stated that initially the enquiry was conducted by one C.Subramanian, Regional Director of Municipal Administration. Subsequently, it was proceeded by another Enquiry Officer by name Sriramulu, Regional Director of Municipal Administration and therefore, there was no continuity. On a perusal of the records, that contention also does not find any favour. Upto P.W.6, the evidence was recorded by the previous Enquiry Officer and that ended on 24.4.1996. Subsequently, the Enquiry Officer Sriramulu recorded the evidence of P.W.7, P.W.8 and P.W.9 on 31.12.1996. Thereafter, he has forwarded the enquiry report. The question of any discontinuity is not there. On the contrary, the second Enquiry Officer has analysed the entire evidence and given his report.
11. In the present case, it is clearly seen from the records that the petitioner was found guilty of accepting the bribe amount from the said Shanmugam. The attempt by the petitioner was to discredit the evidence of the complainant Shanmugam who was examined as P.W.1. The contention raised by the petitioner was that the Shanmugam was a habitual offender and was convicted by the criminal court. Therefore, his evidence cannot be believed. In support of the said submission, the petitioner has produced criminal court orders given by Chief Judicial Magistrate, Pudukottai in C.C.Nos.53/89, 54/89, 55/89, 56/89 and 57/89 dated 31.08.1990. In the said cases, Shanmugam was convicted and was released on probation under Section 4(1) of the Probation of Offenders Act. Therefore, it was contended that if a person is an habitual offender and was convicted by criminal court, his evidence ought not to have been believed. In fact the very same contention was raised by the petitioner in O.A.No.443 of 1993 before the Tribunal and same materials were produced. The Tribunal held that the antecedents of the complainant were not relevant to find out whether the petitioner had demanded and accepted money.
12. In the light of the same objections raised by the petitioner, either the validity of the enquiry or the findings recorded in the enquiry cannot be countenanced by this Court. These leaves out the last contention about the proportionality of the punishment. The Supreme Court vide its judgment in State of Meghalaya v. Meckensingh N.Marak reported in 2008 7 SCC 580 has held that a penalty can be interfered with only when it is shockingly disproportionate to the charges. In such circumstances, a judicial review is limited and it can be restricted only to the exceptional cases. Since the petitioner had involved in a case of accepting bribe and the fact was also proved in the enquiry, this is not a fit case where the discretion of the Court can be exercised in favour of the petitioner. Hence, the writ petition will stand dismissed. However, there will be no order as to costs.
1.The Secretary to Government,
The State of Tamilnadu,
Municipal Administration and
Water Supply (M.E.IV)(1) Dept.,
Fort ST.George, Chennai -9.
2.The Director of Municipal Administration,
Chennai 600 005